Bas v. Steel

Justice, delivered the opinion of the court.

The only ground upon which this motion. *988can 'with propriety be made, is, that the plaintiffs have failed, by their own evidence, to make out the case stated in their declaration, so as to entitle them to a verdict. If the declaration does not set forth a proper case, and in correct form, the defendant may avail himself of these defects, by demurrer. But, if a sufficient case be stated, then it is incumbent on the plaintiffs to prove it, and if they fail to do so, they are not entitled to a verdict. Whenever this is perceived, it saves time for the court to direct .a nonsuit upon the plaintiffs’ own showing. Upon this view of the subject, the defendant cannot make the want of proper aver-ments in the declaration the ground of a non-suit,- and consequently the want of evidence to prove facts not averred. The first reason then which is assigned for this motion, cannot be maintained.

The second ground for the motion is of a •different kind. The declaration states, that Escardo, “being the master or the person having the charge and command of the vessel, did deliver to the collector a manifest •of the cargo sworn to by him;” or, as it is stated in some of the counts, “tendered a manifest to the collector and offered to .swear to it, which was refused.” It was essential that this averment should have been made in the declaration, as the collector was not bound to grant the clearance, unless the manifest was delivered according to the provisions of the ninety-third section of the collection law, or at least tendered tq the collector. Being avérred, the defendant could take no exception to the declaration by demurrer. But if it was necessary to aver it, it is equally so that it should be proved, for without such proof the plaintiffs have no case in court. So far from proving this fact, It appears by the plaintiffs’ own showing, that Escardo, the person who is stated in the declaration to have been master or the person having the charge and command of the vessel, and who delivered the manifest, had nothing to do with the navigation or maritime command of the vessel; and it is perfectly clear to the court, that no other person is authorized under the law to swear to the manifest. The words charge or command, were clearly intended to - apply to ■some officer of the vessel below the grade of the master, and not to an agent, consignee, •or owner. Independent of this defect in the •evidence, the plaintiffs have offered no proof whatever that a manifest was made out, sworn to, and delivered or tendered by any person; and yet this is a necessary part of their case.

It was contended by the plaintiffs’ counsel that enough appeared to let the case go to the jury, because, as the defendant refused to grant the clearance upon another ground, the jury might fairly presume that the manifest was dispensed with, or that it was in-fact produced. But, this would be to presume in favor of the plaintiffs, against their own averments and proof. For they say that Escardo was master, and swore to the manifest and delivered it, and then they prove that he was not master If the jury should presume that he was master, this would be against'the plaintiffs’ own proof; and if they should presume that the manifest was sworn to and delivered by some other person, being master, this would be against the plaintiffs’ averment in their declaration. But the truth is, that because the defendant urged one reason for refusing a clearance, it does not follow that all other objections were removed. If the plaintiffs had removed his suspicions as to the object of the intended voyage, still it would have been necessary, that the master should deliver the manifest, before he could demand a clearance.

The plaintiffs agreed to be called.